State v. Main, DA 09-0475

• Citation: DA 09-0475
• Case Date: June 07, 2011
• Court: United States State Supreme Court of Montana

2011 MT 123

STATE OF MONTANA, Plaintiff and Appellee,
v.
JAMES JOSEPH MAIN, JR. Defendant and Appellant.

DA 09-0475

SUPREME COURT OF THE STATE OF MONTANA

Submitted on Briefs: February 16, 2011
Decided: June 7, 2011

APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DC 06-163
Honorable E. Wayne Phillips, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robin Amber Meguire, Attorney at Law; Great Falls, Montana

For Appellee:

Steve Bullock, Montana Attorney General; John A. Paulson, Assistant Attorney General; Helena, Montana

Dan Guzynski, Barbara Harris, Assistant Attorneys General, Special Deputy County Attorneys for Hill County; Helena, Montana

Gina Dahl, Hill County Attorney; Havre, Montana

Filed:

___________________________
Clerk

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Justice Jim Rice delivered the Opinion of the Court.

¶1 James Main, Jr., (Main) appeals from the judgment and conviction for deliberate homicide, felony murder, entered following jury trial in the Twelfth Judicial District Court, Hill County. We affirm. We address the following issues:

¶2 I. Did the District Court err by denying Main's motion to suppress?

¶3 II. Did the District Court err by denying Main's motion to dismiss for insufficient evidence at the close of the State's case-in-chief?

¶4 III. Was Main denied effective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On November 25, 2006, around 1:20 a.m., police officers were dispatched to Mellissa Snow's (Snow) residence in Havre, Montana in response to a report of a possible deceased male. At the scene, emergency personnel advised law enforcement that the victim, Lloyd or "Lucky" Kvelstad ("Lucky" or "Kvelstad"), was dead. Officer testimony indicated that Kvelstad's face was severely beaten and covered in blood, his pants were down around his ankles, and a ligature made from a hooded sweatshirt (hoodie) string was around his neck.

¶6 Trial testimony provided the following sequence of events. Kim Norquay, Jr. (Norquay) arrived at Snow's residence in the morning on November 24, and Main arrived "towards evening." Joseph Red Elk (Red Elk) and Jason Skidmore (Skidmore) arrived around 9 or 10 p.m. When Red Elk and Skidmore arrived, Billy the Boy (Billy), Snow, Norquay, Kvelstad, and Main were all at Snow's residence "drinking and visiting."

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Snow testified that everyone was drunk. After a discussion about Pilgrims and Thanksgiving, Kvelstad, a non-Native American, was verbally and physically assaulted. Main and Skidmore "choked out" Kvelstad several times until he lost consciousness, but Kvelstad regained consciousness each time. Norquay slapped Kvelstad's face a few times, and simulated a sexual assault on Kvelstad. Red Elk overheard Main and Norquay discuss killing Kvelstad. Eventually, Kvelstad "passed out sleeping" and Snow and Skidmore carried Kvelstad to the bedroom. Red Elk and Skidmore left Snow's house around 11 p.m. Red Elk testified that, when he left the house, Kvelstad was alive and not bloody.

¶7 Nathan Oats (Oats), Georgetta Oats (Georgetta), and Ivy Snow (Ivy) arrived at Snow's residence a few hours later. Upon entering the living room, Oats saw Kvelstad lying on the couch. When trying to rouse Kvelstad, Oats discovered Kvelstad was unresponsive and severely beaten. Oats told Georgetta to call the police. When Georgetta announced that police were coming, Norquay fled and Main attempted to leave. Oats restrained Main from leaving, and they scuffled. Upon their arrival, Officers Jason Barkus (Barkus), Dan Waldron (Waldron), Larry Virts (Virts) and Sergeant Bill Wilkinson, Jr. (Wilkinson) noticed that Ivy, Georgetta, Oats, Billy, Snow, and Main were in the residence. Wilkinson directed that witnesses be separated and detained for questioning. The officers also located and detained Norquay, Red Elk, and Skidmore for questioning. Waldron transported Main to the police department and conversed with him

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until Main was interviewed by Assistant Chief of Police George Tate (Tate). Tate interviewed Main three times over the next day and a half.

¶8 Main was charged with Deliberate Homicide in violation of § 45-5-102(1)(a), MCA (2005)¹ or, alternatively, Deliberate Homicide by felony murder in violation of § 45-5-102(1)(b), MCA. The State subsequently moved to dismiss the primary charge, leaving deliberate homicide by felony murder as the remaining charge, which the District Court granted. Norquay was also charged and convicted of deliberate homicide, felony murder, in Kvelstad's death, and of tampering with physical evidence. His convictions were affirmed by this Court. State v. Norquay, 2011 MT 34, 359 Mont. 257, 248 P.3d 817. Snow testified that she was charged with, and pled guilty to, tampering with physical evidence for her role in cleaning up blood at the scene.

¶9 Main moved to suppress statements he made to Waldron and Tate. The District Court granted the motion with respect to Main's statements to Waldron, but denied the motion as to the statements made to Tate.

¶10 Trial by jury was conducted in February 2009. The witnesses included Snow and Norquay, who testified under grants of judicial immunity. Prior to opening statements, the parties executed a stipulation, which was read to the jury, indicating that Norquay had been "found guilty of being accountable for the deliberate homicide of Lloyd Kvelstad."

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At the conclusion of the State's case-in-chief, Main moved for a judgment of acquittal² on the ground of insufficient evidence, which was denied. Main was found guilty of Deliberate Homicide, felony murder, and was subsequently sentenced to the Montana State Prison for sixty years. Main appeals. Additional facts as necessary will be discussed herein.

DISCUSSION

¶11 I. Did the District Court err by denying Main's motion to suppress?

¶12 "We review a district court's decision to grant or deny a motion to suppress to determine whether the court's underlying findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those findings." State v. Gittens, 2008 MT 55, ¶ 9, 341 Mont. 450, 178 P.3d 91 (citing State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, 171 P.3d 731).

¶13 After Waldron took Main to the police department, they had what the District Court described as a "conversation" lasting about eighty minutes while waiting for Tate to speak with Main. At around 3:00 or 4:00 a.m., Tate interviewed Main after obtaining Main's Miranda waiver. Main denied having any involvement in Kvelstad's death. Later that day, Tate conducted a second interview with Main after Main again waived his Miranda rights. Main continued to deny that he fought with Kvelstad or had any involvement with Kvelstad's death. Later in the interview, Main invoked his right to an

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attorney. Tate ended the interview, and arrested Main. The next afternoon, Main initiated contact with Tate. Tate again obtained Main's Miranda waiver and conducted a third interview. During this third interview, Main acknowledged he had fought with Kvelstad, but said that Kvelstad did not die as a result of the altercation.

¶14 Main moved to suppress his statements to Tate, arguing in part, that his Miranda waivers were involuntary due to his intoxicated state. He also moved for suppression of his statements to Waldron, arguing that Waldron conducted a custodial interrogation without Miranda warnings and that Main had made an unequivocal request for an attorney. The State responded that it would not use Main's statements to Waldron at trial, but that Main's statements to Tate should not be suppressed because Main did not unequivocally request a lawyer, Waldron did not interrogate Main, and Main voluntarily waived his right to counsel during the Tate interviews. The District Court granted Main's motion to suppress statements made to Waldron because the State did not contest the motion, but denied Main's motion as to statements made to Tate.

¶15 The 5th Amendment of the U.S. Constitution and Article II, Section 25 of the Montana Constitution provide the right against self-incrimination. Gittens, ¶ 12; see also Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). "The Miranda Court held that the prosecution may not use statements that stem from a custodial interrogation of a defendant unless the defendant is warned, prior to questioning, that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney." State v. Olson, 2003 MT 61, ¶ 13, 314

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Mont. 402, 66 P.3d 297 (citing Miranda, 384 U.S. at 444, 86 S. Ct. at 1612). Once a person has invoked the right to have counsel present during custodial interrogation, the interrogation must end. State v. Scheffer, 2010 MT 73, ¶ 17, 355 Mont. 523, 230 P.3d 462.

¶16 Whether a suspect invokes a clear and unambiguous right to counsel is an objective inquiry. Scheffer, ¶ 26 (citing Davis v. United States, 512 U.S. 452, 458-59, 114 S. Ct. 2350, 2355 (1994)); see also State v. Morrisey, 2009 MT 201, ¶ 40, 351 Mont. 144, 214 P.3d 708. A suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police...